No Better View: Immigration Law update

By Stephanie

Detroit Legal News

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David C. Koelsch

Director, Immigration Law Clinic

Associate Professor, UDM Law

One of the joys of being attorneys is that most of us specialize in specific areas of the law. As a result, when an everyday incident occurs, we analyze the incident from the perspective of our specialization. Take the average fender bender: a personal injury attorney might think about injuries, damages and fault; a workers compensation attorney might wonder whether one of the drivers was in a company vehicle on company business; and, a prosecutor might wonder if one of the drivers was driving recklessly and if charges could be filed.

As an immigration attorney, I wonder (beyond, of course a concern first for whether the drivers or their passengers are injured) if either driver is an undocumented immigrant and if the local police will call ICE (Immigration and Customs Enforcement). That’s not to suggest, by the way, that ICE should or should not get called -- it’s just in the back of my mind when I see a minor roadside accident.

The point is that we all live in our own little worlds of our chosen legal specialization and sometimes it is good to look up a bit and learn how other areas of law might affect our practice. This short article attempts to do that with Immigration Law in a very cursory manner. This is not an exhaustive treatment of Immigration Law and is only intended as an introduction to the practice area and some of the current trends.

Immigration Law — What’s That?!

In a nutshell, it’s any law or regulation affecting immigrants. Obviously, Immigration Law involves how a person gets a visa to the U.S. or defends against deportation from the U.S., but Immigration Law is also implicated when an immigrant tries to get a driver’s license, pay taxes or form a corporation. The frequency at which Immigration Law issues arise is related then, in large measure, to the number of immigrants present in our region. As a group, attorneys in Michigan are more homogenous, in terms of national origin, than the people we serve so we may not all appreciate the scope of immigration to our area.

According to a report commissioned by Global Detroit, the Detroit area is home to approximately 397,000 immigrants living in all four counties; Oakland and Wayne counties are home to the vast majority, with Macomb and Washtenaw counties being home to less than 90,000 each. Forty-five percent of Metro Detroit’s immigrants are from Asia, 26 percent are from Europe, 15 percent are from Latin America, 9 percent are from Canada and the remainder of North America, while Africa and Oceana account for less than 5 percent each. Immigrants to our region also tend to be more highly-educated than native-born residents yet own homes at only a slightly lower rate than the native-born population.

What is the Practice of Immigration Law?

The practice of Immigration Law is diverse and varied. It covers family-based immigration as well as immigration related to business and employment. It also includes immigrants who are here without permission or who commit crimes in the U.S. or overseas that can trigger deportation. And, because we are located on one of the busiest international border crossings in the world, with thousands of persons and millions of dollars in goods and raw materials in transit every day, Immigration Law also covers issues that arise along both sides of our border. According the American Bar Association’s annual list of “What’s Hot and What’s Not”, the practice of Immigration Law is expected to be hot for the foreseeable future. But how does Immigration Law apply in the daily life of many attorneys in the Detroit area?

• Criminal Law

Most attorneys know that immigrants, whether here legally or otherwise, can be deported for relatively low-level offenses. For example, a client who has lived in the U.S. as a Lawful Permanent Resident for 25 years and wrote two bad checks can be deported. A client with two OUILs may not be able to enter Canada. And, based on the landmark Padilla v. Kentucky decision, 559 U.S. 356 (2010), defense counsel who fail to correctly advise their clients of the immigration consequences of criminal convictions may be liable for malpractice claims and grievances. It is not an overstatement that criminal defense counsel and prosecutors need to have a basic understanding of Immigration Law and competent immigration counsel on speed-dial.

• Employment Law

Your client is expanding its processing facility but cannot find a qualified chemical engineer to manage it. A headhunter firm identifies a highly-skilled foreign national who would be perfect for the job. What do you tell your client about the process to secure the appropriate visa? You are contacted by a foreign investor who wishes to develop a business in Southeast Michigan. What do you advise her about the immigration aspects of her venture? Employment-based Immigration Law is highly-complex and skilled and experienced counsel are needed to navigate the system as efficiently as possible.

• Family Law

You represent a client in a divorce and child custody proceeding. Your client was sponsored by his soon-to-be ex-wife to immigrate to the U.S. Will he be deported because they are getting divorced? What if there was abuse during the marriage? How does his immigration status affect the custody of their children? Knowing the answers to these questions is fundamental to providing competent counsel to your client.

• Corporate Law

You represent the buyer in the acquisition of a smaller company. Part of your due diligence is determining whether the smaller company complies with all relevant immigration laws. Your associate calls you from the file room at the smaller company and reports that there are “serious problems” with the I-9s. What’s an I-9 and what direction do you give to your associate? The deal could crater unless you can accurately assess and quickly triage the situation.

Good golly, you say, this is serious business! How do I find an immigration lawyer to co-counsel on these issues? The best source, of course, is speaking with other attorneys in your field and asking who they use and why. Another source is www.aila.org, which allows geographical and practice area searches of members of the American Immigration Lawyers Association (AILA). AILA is a voluntary bar but it includes most attorneys who specialize in Immigration Law.

Looking Ahead

Like most issues in Washington, D.C. these days, comprehensive immigration reform is subject to political crosscurrents and, while it has been stalled in recent months, sweeping changes to existing laws could pass Congress and be signed into law in fairly short order. Despite disagreements between and within the two major political parties over funding levels for border security and how long and steep the path to legal status should be for undocumented immigrants, there is bipartisan support for a major overhaul to the immigration laws. There is consensus, too, for streamlining the process for skilled foreign workers to get visas, retaining foreign students, and limiting some forms of family-based immigration.

What would comprehensive immigration reform mean for immigration attorneys? A bright future, indeed! What would comprehensive immigration reform mean for non-immigration attorneys? Non-immigration attorneys will need to exercise greater caution when dealing with clients who may be able to benefit from a change in the law, whether they are trying to gain legal status, avoid deportation or build a new life for themselves in our area. Healthy levels of high- and less-skilled immigration are critical to our regional economy, the vibrancy of our cities and suburbs and even maintaining residential and commercial property values. As we always have, attorneys will play a significant role in this latest chapter of our country’s immigration history.

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The University of Detroit Mercy School of Law is a national and international leader in Immigration Law. The School of Law offers U.S. Immigration Law; U.S. and Canadian Immigration Law; an Immigration Law Clinic, in which students represent clients before the U.S. Immigration Court and the U.S. Department of Homeland Security; an Immigration Law Firm Program, in which students are instructed by partners from the world’s largest immigration law firm regarding the nuances of employment-based immigration using simulated transactions; as well as various upper-level seminars involving immigration consequences of criminal convictions and other topics. Students earn a Certificate in Immigration Law by completing all of those courses, plus interning with an organization that practices Immigration Law.